Monday, April 7, 2008

Today 14 members of Congress announced that they will file an Amicus Curiae brief in support of the constitutional challenge to the Real ID Act filed by the Sierra Club and Defenders of Wildlife. Section 102 of the Real ID Act gives Secretary Chertoff and Secretary Chertoff alone the power to waive any local, state, or federal law that he decides will slow construction of the border wall. The Real ID Act failed when it was introduced as a stand alone bill, and only passed when it was attached as a rider on a bill funding the wars in Iraq and Afghanistan, along with tsunami relief. The power given to the Secretary of Homeland Security to sweep away laws passed by Congress and signed by the President for the express purpose of avoiding judicial review is clearly a violation of the separation of powers provided for in the US Constitution.

It is extremely heartening to see members of Congress defending the Constitution and the rule of law. Many members of Congress appear to be too frightened of the lobbying power of xenophobic extremists, or of the likely negative press spewed by pundits such as Lou Dobbs and Sean Hannnity. Rather than stand up for what they know is right, they crouch down and hope that they won't be noticed and the whole issue will go away. Any member of Congress who has not signed on to the Amicus Curiae brief in support of the Constitutional challenge to Chertoff's unchecked power should be contacted and asked to explain their inaction. Members of the House of Representatives should also be urged to cosponsor the Borderlands Conservation and Security Act (HR 2593) which would repeal section 102 of the Real ID Act, restoring the rule of law to our borderlands.

The following is the press release issued by the members of Congress who will sign the Amicus Curiae brief:

April 7, 2008 – Today, Congressman Bennie G. Thompson (D-MS), Chairman of the Committee on Homeland Security led a group of 14 Members of Congress, including eight Committee Chairmen, in submitting a notice of intent to file an Amicus Curiae brief in the Defenders of Wildlife case (No. 07-1180). The brief, which will be filed by the end of the month, pertains to Homeland Security Secretary Michael Chertoff’s use of questionable waiver authority to skirt numerous federal laws in order to construct fencing along the southwest border.

The Amici will urge the Supreme Court to grant certiorari in the case. The petitioners, the Defenders of Wildlife and Sierra Club, allege that the Department of Homeland Security’s use of the waiver is unconstitutional.

Speaking to today’s filing, Chairman Thompson noted that “this waiver by the Secretary of Homeland Security is a direct challenge to Congress’s Constitutional role. The American people entrust Congress to ensure that the laws of this land are faithfully executed not excused by the Executive Branch.” Congressman Thompson added that “while the protection of our nation is a paramount concern to all of us, DHS must act prudently and respect the laws that Congress has written. The far-reaching effects that this waiver will have on the institution of Congress, as well as the border, demands that we act swiftly.”

House Judiciary Committee Chairman John Conyers, Jr. (D-MI) added that "our responsibility to be stewards of the earth cannot be thrown aside for the sake of an ill-conceived border fence. The Administration exempts itself from a duty to protect the environment, sacred burial sites, and centuries-old farms, but conveniently spares wealthy landowners from the bulldozers."

“This blanket waiver of laws like the Clean Air Act and the Safe Drinking Water Act is a clear and disturbing abuse of the Secretary’s discretion,” added Rep. John D. Dingell, Chairman of the House Committee on Energy and Commerce. “Congress’ efforts to seek justification for this waiver from DHS have been stonewalled, which leads me to believe none exists.”

“The Department of Homeland Security’s decision to issue waivers to expedite the construction of a wasteful fence along the Southwest border is disappointing at best. As a former Border Patrol Sector Chief and current Chair of the House Intelligence Committee, I know the importance of securing our borders and fully support providing our agents with strong tools to carry out their jobs. I do not, however, support DHS’s continued disregard for border communities. This recent attempt to bypass more than 30 laws and regulations to pursue an already ill-advised idea should not move forward,” added Intelligence Committee Chairman Silvestre Reyes.The Members are represented by Alan E. Untereiner, Max Huffman, and Alan D. Strasser of Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP in Washington, DC.

Tuesday, April 1, 2008

The No Border Wall Coalition is deeply disturbed by the announcement that Department of Homeland Security Secretary Michael Chertoff has decided to “waive in their entirety” 36 federal laws to build walls along the entire United States’ southern border. This represents an unprecedented abuse of authority on Secretary Chertoff’s part, and clearly demonstrates the need for an immediate repeal of section 102 of the Real ID Act. Obeying the law is not voluntary, it is mandatory, and Secretary Chertoff cannot claim that he is sweeping aside a host of laws on the border in defense of immigration laws. In a nation of laws all laws must be respected, not just those that are convenient.

Equal protection under the law is meant to be a fundamental right shared by every American, but the Real ID Act makes the legal rights of citizens who live near the border conditional on Secretary Chertoff’s whims. Section 102 of the Real ID Act of 2005 states, “Notwithstanding any other provision of law, the Secretary of Homeland Security shall have the authority to waive all legal requirements such Secretary, in such Secretary’s sole discretion, determines necessary to ensure expeditious construction of the barriers and roads under this section.” No one else is granted this extreme power under any circumstance. The president cannot waive our nation’s laws even in times of national crisis, and Secretary Chertoff cannot waive the laws that protect citizens who live away from the border. Only border residents may have their legal protections waived.

Secretary Chertoff claims that the Secure Fence Act mandates walls along the border, and he therefore has no choice but to build border walls no matter the cost. The walls that are scheduled for construction in 2008 will destroy homes, businesses, and farms, will slice through communities, parks, and wildlife refuges, and will cost tens of billions of dollars. Border walls will not stop anyone from entering the United States, and in July 2007 the Congressional Research Service concluded that the California border wall “did not have a discernible impact on the influx of unauthorized aliens coming across the border in San Diego.” Recognizing this fact language was inserted into the 2007 Omnibus Spending bill that allowed Secretary Chertoff to decide whether or not walls would be built in a given area based on tactical considerations, and required that he consult with local stakeholders. Despite the fact that his hands are no longer tied, Secretary Chertoff prefers to act as though the Secure Fence Act is still the law of the land, and it is apparently the only law that he continues to respect.

In announcing the Real ID waivers Secretary Chertoff said, "Criminal activity at the border does not stop for endless debate or protracted litigation." The waivers are essentially an admission that the border wall will itself violate up to 36 federal laws, making construction of the wall a criminal act. If Chertoff is genuinely concerned with criminal activity he should ensure that the agency that he oversees complies with the law.

The only reason for Secretary Chertoff to waive these laws is because he knows that the border wall will violate them. In setting these 36 federal laws aside Secretary Chertoff sets himself above the law. If congress allows unchecked power to remain in the hands of an unelected administration appointee they are complicit in fundamentally undermining the rule of law. Leaving the Real ID Act on the books and allowing Chertoff’s waivers to stand sets a precedent that should outrage the American people. If our nation’s laws can be set aside to build a border wall today, they may be similarly set aside for whatever crisis politicians discover in the next election cycle.

The No Border Wall coalition calls on congress to repeal section 102 of the Real ID Act and restore the rule of law. We also urge the Supreme Court to take up the constitutional challenge brought by the Defenders of Wildlife and Sierra Club to Secretary Chertoff’s earlier waiver of 19 federal laws to force the border wall through the San Pedro Riparian National Conservation Area in Arizona. Allowing one man to overrule laws passed by Congress and signed by the President for the express intent of circumventing judicial oversight is fundamentally un-American.